Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Thursday, January 19, 2012

Nuther challenge to Harris Co. ME: Called administrative and judicial officers by county at different times

A second attorney has filed claims that Harris County medical examiner reports are invalid based on researcher and occasional Grits commenter David Fisher's findings that most of them had not signed constitutionally required oaths of office or bribery statements which are seemingly required for them to perform their duties. Michael Reed at Houston Community Newspapers proivides a good overview of the issues at stake based on recent court filings ("Legal standing of Harris County medical examiner at issue," Jan. 13):

In a Sept. 15, 2011 opinion, ... Glen Van Slyke, assistant county attorney, wrote that the medical examiner is not an appointed public “officer,” but rather an “administrative employee” of the Commissioners Court. As such, holding the position does not require taking an oath of office or providing any written statements.

Oddly, in 2009, Harris County went before the 1st Court of Appeals to argue that Sanchez was a judicial officer and as such could not be barred from performing an autopsy opposed by the deceased’s family for religious reasons.

Harris County was joined in its position by Tarrant, Dallas, Bexar, El Paso and other medical examiner counties. When challenged later, each of these, unlike Harris County, executed the oath and statement as required by the state Constitutional.

Sanchez, through a spokesman, declined to comment Friday.

In the 2009 case, Harris County vs. Afsaneh Saghian, the court ruled “the Medical Examiner of Harris County is a judicial officer and that it is manifestly improper for a district court to enjoin him from performing duties which he deems — in a valid exercise of his discretion — to be necessary and required of him by statute.”

That may be for the best from the county’s vantage point. If the medical examiner is not a judicial officer, according to the defense attorneys, an even bigger problem arises — one that could result in criminal charges, rather than constitutional violations.

Unlike in many other states, physicians in Texas are prohibited by state law from taking part in “corporate practice of medicine.” In other words, doctors cannot practice medicine that is “any way controlled or directed” by a non-physician. This, according to Bollinger, includes partnerships and employee relationships.

“A non-physician cannot hire a physician to be a physician except in very limited exceptions,” Bollinger’s motion said. “None of those circumstances or exceptions apply to the claimed relationship between the Commissioner's Court and the Harris County Medical Examiner.”

Possible penalties for practicing corporate medicine include $1,000 fine for each violation with each day a separate infraction, and the possibility of third-degree felony changes for each violation against the doctor in question.

“Each of these penalties could be applied to both Sanchez and the employer, who the county attorney claims is the Harris County Commissioner's Court,” the motion said.

That would entail roughly 1,750 civil violations and criminal offenses on the part of the both parties since Sanchez took office, January 2003.

The underlying issues may seem like bureaucratic trivialities, but at the same time, the county clearly is in a bind, having argued to an appellate court in 2009 that the ME is a judicial officer (when they wanted to maximize the office's authority to override family religious prerogatives), but now contradicting themselves to say the ME is an administrative employee in order to wiggle out of the Catch-22 they're caught in.

Other counties faced the same dilemma and most went ahead and had their ME file the relevant oath and bribery statement, but it's an open question what the implications would be if a court found MEs work in past cases was invalid, and it's not just Fisher and a few defense attorneys who suspect that may be the case. As Grits noted last year when this came up, "The Webb County Attorney had declared that 'Until such time as she has taken the oath with the appointment as medical examiner then everything she did prior to that is void.' Which raises the question, what happens to older cases that the medical examiner evaluated without the oath and bribery statement? Are they 'void' as well?"

I can't speak to which legal position is correct, but even if Fisher and Co. are right, it would take great courage for a judge to side with them, raising questions about dozens if not hundreds of inquests in murder and manslaughter cases performed while documentation was inadequate, not just in Harris County but potentially in many jurisdictions, if a single judge cracks the door open. Scott Durfee at the DA's office told Reed that they're paying little attention to the issue at the moment (perhaps distracted by proceedings at the grand jury), but "that would change, if an adverse ruling were reached." Indeed, if that happens, a lot of things could change. For want of a nail, the shoe was lost ...

19 comments:

See, Texas Rule of Evidence 702. Just about any licensed doctor in Texas can express an opinion in court as to cause and manner and means of death. In fact, it's probably not even required that the witness be a doctor, or licensed to practice medicine in Texas, to be qualfied to give expert testimony under this rule. Going even further, there's no legal requirement that the state prove the circumstances of death through a medical examiner's testimony. It's just traditionally been done that way. This is a complete and total "non-issue."

Normally, even when I disagree with Grits, I can appreciate his hammering on the principles that the justice system needs to actually work, not just seem to work, and needs to be cost efficient in doing so.

Normally Grits is not reluctant to be emphatic about those principles. So it is rather mystifying that he does not apply the same principles to this medical examiner issue. It's one thing not to know how the legal process will ultimately resolve this.

But it is easy to see that this a diversion and distraction from real issues of substance, and that the only people it benefits is defense attorneys, convicted murderers, and David Fisher.

I don't fault the defense attorney's. There job is clearly to use this issue to benefit their individual clients.

But David Fisher is clearly a individual with goofy-assed notions of what is in the best interest of public policy. And the public would ill-advised to let goofy-assed individuals drive policy.

So my hope is that some branch of government will resolve this expediently, and in such a way so that 50 years of murder convictions are not overturned, so that murders allowed to walk free, and so that David Fisher can dissolve back into the goofy-assed shadows where he came from.

That would make the justice system work and would be highly cost-effective.

8:56, in an adversarial system, self-interested parties are supposedly the driver of truth-seeking, right?

8:46, that may be true, but would an expert, for example, be able to override the family's religious preferences to force an autopsy? There are reasons it matters whether they're an officer of the court or an administrative contract worker, and it pertains to the extent of their authority.

Do I think Fisher's view will prevail? In the end, I severely doubt it. Even if a judge sides with them, the ruling would likely be toast at the CCA. But they've still caught the system in a moment of two-facedness, with the the county claiming a different legal status for the ME depending on whether they want to maximize their authority or minimize their liability.

Moreover, irregardless of whether this particular detail is important, there are lots of problems with professionalism at ME's offices of which this confusion is only a symptom, many of which were identified in the 2009 National Academy of Sciences report on strengthening forensics. So it doesn't bother me much that somebody's out there grading their papers, whatever their motivations.

Hypothetically, Grits, if an unqualfied M.E. ordered an autopsy over the objections of the family and then found evidence of foul play, who's going to have legal standing to complain? The dead guy/girl certainly isn't going to be complaining. It's not like the family would have some kind of privacy interest in the corpse like they would in a home search context. Maybe they'd have some kind of civil tort claim for infliction of emotional distress. My guess is that this will all get sorted out at the next legislature and the M.E.'s will either have to take an oath or not. It's not going to amount to a hill of beans when it comes to the validity of criminal convictions. Other doctors/nurses/health care professionals give expert opinions all the time in civil and criminal litigation as to what factors caused or contributed to death or personal injury. Murder cases can even be tried without a body or any autopsy at all. The issue of quality control is a totally separate discussion.

In your hypothetical, 11:23, your "if" never happens if the ME isn't a judicial officer, so there's no need to debate the consequences. Expert witnesses can't order autopsies, exhumations, etc, on their own. Those powers are reserved to MEs, JPs, judges, etc..

I also think the issues of quality control and the failure to apply the law consistently across cases may not be as separate as you portray them.

The mistake you make is you do not understand what duties the TX Code of Criminal Procedure imposes on the ME and conversely what limits it sets on his/her authority.

The statutory duty of the ME is not to perform autopsies, as they are discretionary, but to conduct "Inquest". A medical examiner cannot perform an autopsy unless it is in connection with an inquest.

Upon the completion of the inquest the ME "must" write an inquest report, which will include all notes, investigation reports, testimony, autopsy report if one was conducted and all other documents. This report must be placed in a sealed envelope and filed with the county district clerk,

The TX Court of Criminal Appeals wrote in an opinion, “It seems wholly Immaterial whether the justice styled the proceeding an ‘inquest’ or an ‘examining trial’ ….”

Under the Statute ME's have all the powers of a JP when conducting an inquest and when doing so presides over the inquest as a Judge. The ME has the power to issue subpoenas, swear witnesses under oath, hold persons in contempt, issue arrest warrants and set bonds. This is this reason why the 1st Court of Appeals found, ME's when acting under the duties imposed by the statute are judicial officers.

The Statute only allows JPs and MEs to order, or perform autopsies when conducting “Inquest”. If there is no inquest, an autopsy would be illegal. An autopsy report does not suffice as an inquest report. Harris Co. has already admitted in court they have not been conducting Inquest.

When I brought the Oath issue to the attention of Harris Co. 1st Assistant DA Jim Leitner on Sept. 2, 2011, he concurred Sanchez was required to execute both the Statement and Oath, but when he tried to get Sanchez to comply, Sanchez refused. Leitner also agreed that all ME’s office autopsies were illegal until Sanchez executes these documents.

Also, it is not the DA’s office that is arguing this issue in the courts, it’s the Harris Co. Attorney carrying the water, as it is Ryan’s office that cause this problem by not advising the commissioners court of the Oath requirement when they appointed Sanchez.

Okay, then calculate this scenario into your equation. In most rural Texas counties, it is the JP who orders an inquest. However, most rural counties also contract with medical examiners' offices in larger counties to have autopsies performed. Are you telling me these "un-oathed" medical examiners are good to go on these out of county contract autopsies ordered by JP's, but they are unqualified to do the same thing in their own county. And still, other than making a hypertechnical legal argument, I'm wondering what difference it makes. If these autopsies are being performed by otherwise qualified doctors, their testimony is not going to be disallowed in court. And their findings will be just as accurate (or inaccurate, if that's the case) without regard to whether they took an oath or not.

I'm not "telling you" anything, 3:07, I'm waiting for the judges to tell us something like everybody else! I was just explaining why I think it's not a completely spurious complaint, even if it seems like something of a technicality.

The difference it makes is evidenced in the case from two years ago where they wanted the ME to be a judicial officer: It gives them greater authority if they are one, but also confers certain responsibilities, including these "technical" ones. Besides, maybe it's just the legal crowd that considers it "technical": JPs are elected jurists; nobody elected MEs. That may matter more to the average joe when they get to do stuff like override your religious preferences than it does, say, to prosecutors, cops, etc.. Maybe not, but the reason I mention it on Grits is that I see it as an issue of scope of authority in a relatively unregulated forensic field, not just a paperwork matter.

3:07, Again, autopsies are not required under both the JP & ME statutes, "Inquest" are.

Under the ME statute the only way a medical examiner can perform an autopsy for a JP is for the JP county to join into a Medical Examiner District. CCP 49.25, Sec. 1-a(a)

TX AGs have held for the last sixty years JP's & ME's cannot perform, or order autopsies on bodies from other counties, except as noted above.

Both JPs & MEs statutory authority is restricted to those powers granted under the statute. Their statutory authority ends at the county line, or in the case of the ME, the ME District boundary.

It would be possible for a medical examiner in his off time, as a licensed physician to go to a JP county and perform an autopsy, but only so long as that arraignment did compromise, or interfere with his statutory duties.(1997 AG Opinion)

To expand on what the JP & MEs duties are under the statute, once they determine a death is a homicide, the statute requires they then determine who committed the offense and collect evidence against that person, up to and including issuing an arrest warrant, and setting a bond upon arrest.

I find it wholly appalling that anyone would dismiss this as a technicality. There are literally hundreds of cases evidencing falsification of reports by MEs all over the state of Texas. You are talking about innocent people who have been incarcerated/executed, and the innocent whose murderers walk free compliments of a suicide ruling by the MEs. I implore the people who would dare criticize any efforts to expose this very serious issue in Texas to contact, for starters, the families of Sonya Cacy and Philip Michael Shue.

Meaningless? Wow. I hope the parents of the young teenager shot twice in the mouth are reading this. I often wonder how they would describe the horror of having a ME rule their son's murder a suicide. A young male with goals of a promising future shot twice in the mouth and no gunshot residue on his hands. I'm sorry you find the devastation and terror of this injustice "distracting" and "nutty". May your children outlive you as they should.

There are quite a few well documented cases of suicides involving multiple gunshots to the head. It may not be common, but depending on the caliper of the gun and the trajectory of the first bullet it is possible. Traumatic injury to the brain is not necessarily immediately incapacitating. As an example, there are those occasional graphic reports of workers who have brain injuries from pipes or spikes in their heads who are not killed.

Also, gunshot residue comes from the combustion of the primer mixture. Those primer mixtures that don't contain lead, barium and antimony produce a residue that cannot be classified as gunshot residue.

Some relatives of some suicide victims are very resistant to accepting the cause of death as suicide, despite even overwhelming evidence. Even with a perfect medical examiner process, this will be the case. So the agreement or lack of agreement of family members with cause of death determinations can not be the measure of whether the system is good or not.

That is not to say that the current system cannot be improved. For instance, in some instances it may be advisable for there be automatic review of the autopsy findings by a second forensic pathologist prior to the cause and manner of death being finalized. That is the sort of meaningful discussion that is needed.

But of course there is an all-to human tendency to simply be frustrated and critical, rather than to be thoughtful and reflective. And this is where David Fisher and his ilk can step in and derail the conversation.

To read David Fisher, western civilization as we know it depends on the Texas anti-bribery oath, an historic anachronism of the state constitution if there ever was one. Final resolution of this question is in the hands of the legal system. Yet he goes on and on with his bizarre fixation, constructing tortuous diatribes that seem to be intended to impress people with how smart he is rather rather than to provide anything like a meaningful solution that benefits the public. It is an odd and amusing thing to see.

The case of Phineas Gage is one specific, well-documented case of traumatic brain damage that illustrates what is possible. After having a 13 lb metal bar pass through the left side of his brain, he was conscious and talking within minutes of the injury, and sat up in a horse cart for the 3/4 mile trip to the doctor. There was no surgical repair, and he lived for about 12 years with no effect on his reasoning abilities, but rather profound effects on his personality.

This is a tangent, but somebody wrote that there are "quite a few well documented cases of suicides involving multiple gunshots to the head."

That's true, as far as it goes, but just to say so, "quite a few" isn't a statistically large number. I happened to look up the numbers for a post a while back, finding that .7% of suicides by gunshot involved two shots, fwiw. Studies have found most two-shot suicides happen with long guns and .22 caliber handguns.

In October 2010 the Current El Paso Co. Medical Examiner ruled Christopher Morales committed suicide by shooting himself Nine (9) time with a 22 caliber rifle.

He allegedly shot himself 4 times in the chest, perforating all 4 lobes of his lungs, once in the small intestine, 3 times in the liver and once in the left kidney. all these wounds were close contact, but no estimated distance was included in the autopsy report.

The autopsy report also shows Morales never took a breath after being shot each of the 4 times in the lungs, which shows he was already dead.

"I always tell people interested in these issues that your blog is the most important news source, and have had high-ranking corrections officials tell me they read it regularly."

- Scott Medlock, Texas Civil Rights Project

"a helluva blog"

- Solomon Moore, NY Times criminal justice correspondent

"Congrats on building one of the most read and important blogs on a specific policy area that I've ever seen"

- Donald Lee, Texas Conference of Urban Counties

GFB "is a fact-packed, trustworthy reporter of the weirdness that makes up corrections and criminal law in the Lone Star State" and has "shown more naked emperors than Hans Christian Andersen ever did."

-Attorney Bob Mabry, Woodlands

"Grits really shows the potential of a single-state focused criminal law blog"

- Corey Yung, Sex Crimes Blog

"I regard Grits for Breakfast as one of the most welcome and helpful vehicles we elected officials have for understanding the problems and their solutions."

Tommy Adkisson,Bexar County Commissioner

"dude really has a pragmatic approach to crime fighting, almost like he’s some kind of statistics superhero"